Citation Nr: 9836182
Decision Date: 12/10/98 Archive Date: 12/15/98
DOCKET NO. 96-22 026 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to an increased disability rating for the
service-connected residuals of a gunshot wound with
amputation of the distal phalanx of the great toe of the
right foot, currently rated as 10 percent disabling.
2. Entitlement to a compensable disability rating for the
service-connected residuals of a gunshot wound with
amputation of the distal phalanx of the second toe of the
right foot.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
ATTORNEY FOR THE BOARD
Bernie Gallagher, Counsel
INTRODUCTION
The appellant had active service from July 1951 to August
1953.
This matter comes before the Board of Veterans’ Appeals (the
Board) on appeal as a result of rating decisions by the
Department of Veterans Affairs (VA) regional office (RO) in
Atlanta, Georgia.
The RO has provided a statement of the case to the veteran on
the first issue listed on the title page hereof. The veteran
had expressed disagreement with the evaluation for his toes
(plural). As he is service-connected for both his great and
second toe on the right foot; he has made contentions with
respect to both toes; and the RO has provided him the rating
criteria for evaluation of both toes, the Board has
recharacterized the issues to reflect those service-connected
conditions that are on appeal.
In January 1997, the veteran claimed entitlement to secondary
service connection for right foot deformity, flat foot, and
loss of balance. The RO has adjudicated these claims and
denied them, notifying the veteran of the denial in July
1998. These issues have not been subject to a notice of
disagreement, and they are not before the Board at this time.
REMAND
The veteran contends that he is experiencing a great deal of
pain as a result of his right foot condition. He claims that
he must walk with his foot crooked to one side. He
experiences pain when any part of his shoe comes in contact
with the part of his toes remaining after the amputation.
The representative requests that an extraschedular evaluation
be applied under the provisions of 38 C.F.R. § 3.321(b)(1).
He stresses the veteran has pain, difficulty wearing shoes,
and must walk with the right foot turned out. He requests
that the case be remanded to determine the degree of pain and
restriction of motion while walking, and whether special
shoes can or cannot alleviate his difficulty due to the
service-connected right foot condition.
Service connection has been granted for the amputation of the
distal phalanx of the great toe and also for the amputation
of the distal phalanx of the second toe of the right foot.
A VA outpatient record in January 1994 indicated that despite
the loss of the first and second toes of the right foot, the
veteran functioned well except for a painful callus on the
stump.
VA outpatient records disclose that on several occasions
during 1996, the veteran was treated for painful calluses of
the right foot. In November 1996, he complained that his
right orthotic was cutting into the lateral side of his foot.
In July 1997, it was reported that his painful foot may
benefit from orthotics and that also he had nail problems.
The appellant has not received an official VA examination for
compensation purposes for his service-connected right foot
problem since 1986. In light of more recent outpatient
treatment for the right foot disabilities, a duty to assist
includes the duty to develop the pertinent facts by
conducting a current and thorough medical examination.
See 38 C.F.R. §§ 3.103(a), 4.1 (1998); see also Waddell v.
Brown, 5 Vet. App. 454, 456 (1993).
Additionally, consideration of extraschedular evaluations for
the service-connected right foot condition pursuant to
38 C.F.R. § 3.321(b)(1) (1998) has been raised by the
representative. Consequently, the Board will request the RO
to consider the referral for consideration of that section
pursuant to this remand. See VAOPGCPREC 6-96; 61 Fed.Reg.
66749 (1996) (remand, rather than referral, is proper
disposition for extraschedular claims inferred or reasonably
raised by the evidence of record).
Accordingly, this case is REMANDED for the following
development:
1. Obtain copies of any VA outpatient
treatment from April 1998 for the
service-connected right foot disabilities
and associate them with the claims
folder.
2. Schedule the appellant for a VA
compensation examination to determine the
nature and extent of impairment caused by
his service-connected right great and
second toe disabilities. The claims
folder must be made available to the
examiner prior to the examination to
review the clinical record, including the
treatment for calluses of the right great
and second toes. All pertinent
symptomatology and medical findings
should be reported in detail. In that
the examination is to be conducted for
compensation rather than for treatment
purposes, the physician should be advised
to address the functional impairment of
the appellant’s disabilities in
correlation with the criteria set forth
in the Schedule for Rating Disabilities,
38 C.F.R. Part 4 (1998). In addition,
the examiner should comment on whether
the veteran must walk with his foot
crooked to one side, as contended, and
whether he experiences pain when any part
of his shoe comes in contact with the
part of his toes remaining after the
amputation. All disabling features
attributable to the amputation of the
veteran’s toes are to be described.
3. The appellant must be given adequate
notice of the requested examinations,
which includes advising him of the
consequences of failure to report for a
scheduled examination. 38 C.F.R.
§ 3.655. If he fails to report for an
examination, this fact should be
documented in the claims folder. A copy
of all notifications must be associated
with the claims folder.
4. Subsequently, the RO should review
the claims folder and ensure that all of
the foregoing development actions have
been conducted and completed in full. If
any development is incomplete,
appropriate corrective action is to be
implemented. Specific attention is
directed to the examination reports to
ensure that they are in compliance with
the directives of this REMAND. If a
report is deficient in any manner, it
must be returned to the examiner for
corrective action. 38 C.F.R. § 4.2
(1998); see also Stegall v. West, 11 Vet.
App. 268 (1998).
5. After completion of the above, the RO
should readjudicate the issues of
increased disability ratings for the
right great toe and second toe on appeal,
with consideration given to all of the
evidence of record, including any
additional medical evidence obtained by
the RO pursuant to this remand. Further,
the RO’s consideration of referring one
or more of the increased rating issues
for extraschedular evaluation under
38 C.F.R. § 3.321(b)(1) must be
documented on readjudication.
After completion of the above, and if any
benefit sought on appeal, for which a
notice of disagreement has been filed,
remains denied, the appellant and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The appellant need take no action until otherwise
notified.
While this case is in remand status, the appellant and his
representative may submit additional evidence and argument to
the RO on the appealed issues that are the subject of this
remand. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992);
Booth v. Brown, 8 Vet. App. 109, 112 (1995).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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